Paderick v. Goldsboro Lumber Co.

ClaRKSOn, J. Tbe jury found that L. L. Paderick was an independent contractor and tbe plaintiff’s intestate, Willie Paderick, was in bis employ at tbe time of bis death. It is contended by defendant that tbe proofs do not correspond with tbe allegations. This is true in part, but not to such a material extent, under our liberal practice, that it would be reversible error; especially is this so on tbe theory on which tbe case was tried in tbe court below. Tbe first issue being found that L. L. Paderick was an independent contractor, tbe serious matters for our consideration are: Wbat duty, if any, did defendant owe the plaintiff’s intestate? If be owed a duty, was tbe failure in tbe performance of that duty negligence, and was that negligence tbe proximate cause of plaintiff’s intestate’s injury? Did plaintiff’s intestate contribute to bis own injury? Tbe main assignment of error is to tbe refusal of tbe court below to sustain tbe defendant’s motion of nonsuit at tbe close of plaintiff’s evidence and at tbe close of all tbe evidence. Tbe evidence, taken in tbe light most favorable- to plaintiff, tended to show that tbe defendant was in tbe lumber business. It owned tbe lumber in the woods. It employed L. L. Paderick to get tbe lumber out of the woods and paid him $3.00 a thousand feet for tbe lumber loaded on tbe defendant’s cars. L. L. Paderick employed plaintiff’s intestate and other help. Defendant bad a railroad with cars on which tbe lumber was loaded to be transported in tbe course of its business to its manufacturing plant. Tbe defendant furnished L. L. Paderick tbe “skidder” or “loader,” hereafter termed loader, to place tbe logs on its ears for transportation. Tbe loader that defendant furnished, it was contended, was defective — out of repair. This was called to tbe attention of tbe defendant’s foreman in tbe woods, and it is contended that be promised a short time before plaintiff’s intestate was killed to *312 repair it — this was not done. In operating tbe loader in a careful manner, on account of its defective condition, it caused tbe log being placed to roll and veer and strike a small cypress tree about thirty feet bigb and it was whipped down on plaintiff's intestate, who was standing nearby, and killed him. Under tbe facts and circumstances of this case, defendant having agreed with L. L. Paderick to furnish the loader, in so far as L. L. Paderick and those in his employ are concerned, in the operation of the loader, the principle of master and servant was applicable. It was then the duty of the defendant, as was said in Riggs v. Mfg. Co., ante, p. 258: “That an employer of labor, in the exercise of reasonable care, must provide for his employees a safe place to do their work and supply them with machinery, implements, and appliances safe and suitable for the work in which they are engaged, and to keep such implements, etc., in safe condition as far as this can be done by the exercise of proper care and supervision,” citing numerous authorities. 14 Enc. Dig. of N. C., sec. 42, p. 761. We think on this aspect of the case that the learned judge who tried this cause in the court below carefully followed the principles of law herein set forth, and charged the jury substantially in the language of the decisions of this Court. As to the defect in the loader, a disputed fact, this was left to the jury. The defendant contends that if it was -negligent, its negligence was not the proximate cause of the injury. Proximate cause has been recently discussed in Whitehead v. Telephone Co., ante, 197. The facts in that case are different from those in the present case. The defendant further contends that the injury was accidental or improbable, not the natural and probable result of the act if caused by the negligence of defendant. After a careful review of the authorities cited, we cannot so hold. The principle laid down in Ridge v. R. R., 167 N. C., 525, is thus stated: “Where the master’s negligence contributes to the result, although there may be a cooperating cause not due to the servant’s act, the law will not undertake to apportion the liability, but will hold him responsible to the servant in the same degree and with the same consequences as if his negligence had been the sole cause of the injury. Steele v. Grant, 166 N. C., 635; Wade v. Contracting Co., 149 N. C., 177. As said in the oft-cited case of Kellogg v. R. R., 94 U. S., 469, 475, ‘The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.’ In this case there was no intermediate, or intervening, independent and efficient cause, which, operating alone, was sufficient of itself to break the connection between defendant’s negligence and the injury, and the *313 primary wrong must be considered as reaching from the beginning to tbe effect, and, therefore, as proximate to it. Hardy v. Lumber Co., 160 N. C., at pp. 124, 125; Kellogg v. R. R., supra; Ins. Co. v. Boon, 95 U. S., 619. The windstorm would not, of itself, have caused the injury, as the testimony shows, when viewed favorably for the plaintiff; but it required the concurrence and cooperation of the defendant’s negligence in having a defective car to produce -the disastrous result.” Lamb v. R. R., 179 N. C., 622-623; Davis v. Shipbuilding Co., 180 N. C., 76; Page v. Mfg. Co., ibid., 334; Tatham v. Mfg. Co., ibid., 629; Saunders v. R. R., 185 N. C., 290; Mangum v. R. R., 188 N. C., 695. Under the facts here, the effect was the natural and probable result and sequence of the cause — the defective loader. In fact, several anticipated the result, it was foreseen and called to defendant’s foreman’s attention to make repair, but of no avail. The consequences defendant should not now complain of — warning and notice were given it of the defective loader and it knew the place in which it was being operated and the surroundings. In fact, at the request of the defendant, this was left to the jury to determine in the prayer for instructions asked by defendant: “Unless you find that the defects of the skidder complained of and testified to were the proximate cause of the injury to, and death of (Willie) J. W. Paderick, you would answer second issue No,’- and fourth issue Nothing.’ ” The question of contributory negligence was left to the jury under proper instructions. The “less insurance” controversy, from the findings of the jury on the first issue, was in no way prejudicial — perhaps, it was competent on that issue. The record shows that the objection by defendant was sustained. There was no request by defendant to caution, the jury — -if error, it is too late now to complain. The pathos of the case — a witness testified: “Willie Paderick was unmarried, lived with his mother, was twenty-three years old at the time of his death, received $2.00 a day. As to his habits for sobriety, he was like me, just a hard-working man and tried to take care of his mother. He was sober and in good health and used his money on his home and his mother.” From a careful review of the whole case, we can find no prejudicial or reversible error. No error. Varser, J., not sitting.